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Iddo Porat
rior over regular laws. The superiority of these Basic Laws, however, was not
written explicitly in the text of either of them, nor did either of them expressly
authorize any court to invalidate laws conflicting with them.
The political decision to enact these two Basic Laws was a result of a com-
promise between the political parties that traditionally objected to a consti-
tutional bill of rights, and those that attempted to enact it.
21
As mentioned
above, there were several attempts to complete the enactment of the Basic
Laws including a Basic Law: Bill of Rights. The reason why this did not work
out was the consistent objection of several political parties. Neither of the
two big parties – the Left, Labor party, and the Right, Likud party – was very
enthusiastic about the constitution project, and both had their own reserva-
tions about it. But they could probably have tolerated the idea, which was
promoted primarily by a small minority of left wing and right wing liberal
enthusiasts, had it not been for the adamant and consistent objection of the
religious parties, whose support they both needed in order to form a coalition
government.
Since the debate in the first Knesset and until today the religious par-
ties have been objecting to a constitution for two main reasons: first, they
believed that Israel, as the homeland of the Jewish people, should only have
one document that is referred to as its constitution – the Torah. Second, and
probably more importantly, they were afraid that a judicially enforced bill of
rights would infringe on the special privileges that the Jewish religion and the
Jewish religious institutions managed to gain through the political process,
and through the historic deal between the religious and secular parties, known
as the Status Quo.
22
What allowed a compromise with the religious parties in
1992 was, amongst other reasons, a tactical shift on the part of the constitution
enthusiasts with regard to the bill of rights.
23
Instead of insisting on a complete
bill of rights, the left-wing promoters of the constitution, joined by several
right wing and religious right liberals, decided to start and enact first those
rights for which they could get the religious parties on board. This was the
reason for the particular list of rights that was finally included in the two Basic
Laws. None of the rights that were considered problematic by the religious
parties, such as the rights to equality, freedom of religion and conscience, and
21
Ruth Gavison, “Constitutions and Political Reconstruction? Israel’s Quest for a Constitution”
(2003) 18 International Sociology 53, 63–4.
22
Ibid.
, at 58.
23
See Gideon Sapir, “Constitutional Revolutions: Israel as a Case Study” (2009) 5 International
Journal of Law in Context 355, 357.
The Platonic Conception of the Israeli Constitution
277
free speech were included.
24
Only those rights that were not considered as a
threat by the religious parties were included: freedom of occupation, property,
dignity, life, liberty, liberty from arrest, right of movement, and privacy.
As to the limitation clause, it is questionable whether the religious parties
were fully aware of the implications of what they were agreeing to. They may
have been aware of the possibility that the Court would strike down laws con-
flicting with these two Basic Laws, because of the limitation clause, but were
not too concerned about this, so long as the rights that were included in them
did not affect their interests.
25
What is absolutely certain is that no one in the
political arena thought that these two Basic Laws amounted to any substantial
change in the political system of Israel. Nobody thought they would have any
effect on the status of the previous nine Basic Laws, and nobody thought that
they amounted to anything close to a full constitution. Indeed, public and
political interest around these Basic Laws was quite limited. The first Basic
Law was adopted with a vote of twenty-one for and one against, and the second
with the vote of thirty-two for and thirteen against – this out of one-hundred
and twenty Knesset Members. The newspapers the next day reported on the
enactment of the two Basic Laws on their inner pages (some did not report at
all, as did the television), and the event did not make any news headlines.
26
9.2. The
mizrahi
Case: Bridging the Gap between
Textual Reality and Ideal – 1995 and Onwards
While the two Basic Laws of 1992 were not understood as a major change
by most, the one institution that thought otherwise was the Israeli Supreme
Court, and in particular Justice Aharon Barak, who was soon to become the
President of the Israeli Supreme Court. Justice Barak viewed these two Basic
Laws as an opportunity, maybe a one-time opportunity, to revamp the potential
24
The religious parties were afraid that a judicially enforced right to equality would conflict with
the inferior status of women in rabbinical courts that have exclusive authority over marriage
and divorce of Jews under Israeli law. They also feared that a right to equality would conflict
with the preference given to Orthodox Jewish organizations over Conservative and Reform
Jewish organizations. They were also concerned that it would endanger the privileges of
Yeshiva Students such as exemption from army service, or special state stipends. For the same
reasons they adamantly objected to a right to freedom of conscience and of religion that could
be invoked by Jewish Reform and Conservatives, and by those who wished not to be subject to
laws motivated by religious reasons. One other concern they had was that a judicially enforced
right to freedom of expression would allow for too much defamation of God and of religious
symbols in the public sphere, and would not allow restrictions to speech based on religious
feelings. See generally Gavison, Supra note 21.
25
See Gavison, Supra note 21, 64.
26
See Sapir, Supra note 23, 10.
278
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